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Ahmed Bux Alias Ahmed Khan Vs. Bhim Raj Modilal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.C. Civil Revision No. 574 of 1984
Judge
Reported in1985(2)WLN377
AppellantAhmed Bux Alias Ahmed Khan
RespondentBhim Raj Modilal
DispositionPetition allowed
Excerpt:
.....- section 4 (a)(b)(c)--no proceeding in civil court is maintainable for recovery of debt against scheduled debtor nor amount of debt can be recovered either personally or from his property--held, defence available to scheduled debtor is not defeated or lost when he did not apply for liquidation of debt in trial court.; when clauses (b) and (c) of section 4 of the act are read together the effect is that no proceeding in a civil court for the recovery of the debt against a scheduled debtor is maintainable nor the amount of debt can be recovered either personally or from the property of the scheduled debtor.; section 4, according to me, gives a right to the scheduled debtor to take shelter under the act at any time which may be either during the pendency of the suit or thereafter when..........shall entertain any proceeding against a scheduled debtor for the recovery of any amount of the debt. clause (d) further lays down that all proceedings including the execution proceeding, pending on the date of the commencement of the act, shall abate. clause (d) of course speaks for the pending proceedings on the date of the commencement of the act. but clause (c) speaks for the proceedings to be initiated after the commencement of the act. the words 'no civil court shall entertain any proceeding against the scheduled debtor' connote that a proceeding in the civil court for the recovery of the debt against the scheduled debtor is not maintainable. when clauses (b) and (c) of section 4 of the act are read together the effect is that no proceeding in a civil court for the recovery of.....
Judgment:

Shyam Sunder Byas, J.

1. This is a judgment-debtor's revision-petition directed against the order of the learned Additional District Judge, Rajsamand dated Oct. 20, 1984, by which his application filed under Section 4 of the Rajasthan Scheduled Debtors (Liquidation of Indebtedness) Act, 1976 (here in after to be referred as 'the Act') was dismissed.

2. Briefly recounted, the relevant facts giving rise to this revision petition are that the decree-holder M/s Bhimraj Modilal obtained a money decree for a sum of Rs. 10,000/- against the judgment-debtor Ahmed Khan on October 4, 1983. The decree-holder submitted an application on July 10, 1984 in the court below for execution of the decree. The judgment-debtor submitted an application under Section 4 of the Act on October 20, 1984 stating therein that he was a Scheduled debtor being a marginal farmer and as such the decretal debt be discharged. The learned Additional District Judge summarily dismissed this application taking the view that this defence should have been raised by the judgment-debtor during trial of the civil suit. He also look the view that the certificate filed by the judgment-debtor in support of his application did not show that he was a Scheduled debtor on October 4, 1983 when the decree was passed. Aggrieved against the said order, the judgment-debtor has come-up in revision.

3. I have heared the learned counsel for the parties and perused the record.

4. In assailing the impugned order it was contended by the learned counsel for the judgment-debtor that the whole approach of the court below was erroneous and unsustainable. There is nothing in the Act to show that if the defence relating to the debtor's being, a Scheduled debtor has not been taken during the trial of the suit it cannot be taken later-on by him in execution proceeding. It was argued that Section 4 of the Act speaks for the discharge of debts and any sort of proceeding for the recovery of the debt against the scheduled debtor must abate. It was contended that the court below did not take into consideration the mandatory provisions of Section 4 of the Act. It was, on the other hand, contended by Mr. Mathur, learned counsel appearing for the decree-holder that the view taken by the court below is perfectly correct and calls for no interference.

5. It would be proper to re-produce the impugned order which reads as under:

odhy en;wu us izkFkZuk i= lhekUr d`'kd dk e; izek.k &i;= ds is'k fd;k A odqyk; dks lquk x;kA en;wu dks cjy bLrgkbZ flfoy dsl es is'k djus dks Fkk vr% izkFkZuk&i;= [kkfjt fd;k tkus dk gSA layXu izek.k QkbZy gks A fcdzh fnuakd 4&10&1983 dks gqbZ gS vkSj mles vFkok 4&1&1983 dks izkFkhZ lhekUr d`'kd Fkk A ;k ugh] ml rkjh[k dk lfVZfQdsV fn;k x;k Fkk A izkFkhZ us lEcfU/kr izko/kku ds vuqlkj U;k;ky; ds fu.kZ; rd NksM+us es j[kk A izkFkZuk&i;= vr% [kkfjt fd;k tkrk gS A

6. The Act is intended for the welfare of the economically weaker Sections. As its preamble shows, it is to provide for the liquidation of indebtedness of marginal farmers, agricultural labourers and rural artisans in the State of Rajasthan. All these three types of debtors have been defined as scheduled debtors under the Act. Section 4 of the Act, which opens with non-obstante clause, speaks about the liquidation of debts of the scheduled debtors. It reads as under:

(4) Liquidation of debts of the scheduled debtor

Not with standing anything contained in any other law for the time being in force or in any contract or other instrument having force by virtue of any such law, and save as otherwise expressly provided in this Act, the consequences as here in after set forth shall with effect from the date of commencement of this Act ensue, namely:

(a) Every debt advanced before the commencement of this Act, including the amount of interest, if any payable by a scheduled debtor to a creditor shall be deemed to be wholly discharged;

(b) no such debt due from the such scheduled debtor immediately before, the commencement of this Act, shall be recoverable him, or from or against any movable or immovable proper belonging to him, nor shall any such property be liable to be attached and sold or proceeded against in any manner in the execution of any decree or order relating to such debt against him ;

(c) no civil court shall entertain any proceeding against a scheduled debtor for the recovery of any amount of such debt including interest, if any,

Provided that where a proceeding is instituted jointly against a scheduled debtor and any other person, nothing in this clause shall apply to the maintainability of a proceeding in so far as it relates to such other person:

(d) all proceedings (including appeals, revisions attachment or execution proceedings) pending on the date of the commencement of this Act for the recovery of any debt against a scheduled debtor shall abate:

Provided that nothing in this clause shall apply to the sale of

(i) any moveable property, held and concluded before the commencement of this Act:

(ii) any immovable property confirmed before such commencement:

(e) every scheduled debtor undergoing detention in a civil prison in execution of any decree for money passed against him by a civil court in respect of any debt shall be released.

7. The provisions of Section 4 are mandatory and due effect must be given to them. Clause (4) of Section 4 specifically lays down in explicit terms that every debt covered by the Act shall be deemed to be wholly discharged. Clause (b) further lays down that the debt covered by the Act shall not be recovered from the scheduled debtor personally or from his movable or immovable property. This clause further lays down that no property of the scheduled debtor shall be attached or sold in any manner in the execution of any decree or order relating to the debt covered by the Act. Clause (e) contains a provision that no civil court shall entertain any proceeding against a scheduled debtor for the recovery of any amount of the debt. Clause (d) further lays down that all proceedings including the execution proceeding, pending on the date of the commencement of the Act, shall abate. Clause (d) of course speaks for the pending proceedings on the date of the commencement of the Act. But clause (c) speaks for the proceedings to be initiated after the commencement of the Act. The words 'no civil court shall entertain any proceeding against the scheduled debtor' connote that a proceeding in the civil court for the recovery of the debt against the scheduled debtor is not maintainable. When clauses (b) and (c) of Section 4 of the Act are read together the effect is that no proceeding in a civil court for the recovery of the debt against a scheduled debtor in maintainable nor the amount of debt can be recovered either personally or from the property of the scheduled debtor.

8. The Act does not lay down that the defence by a debtor that he is a scheduled debtor under the Act can only be raised by him in a civil suit if filed after the Act came into force. Section 4, according to me, gives a right to the scheduled debtor to take shelter under the Act at any time which may be either during the pendency of the suit or thereafter when the execution proceedings are initiated against him. The defence available t6 a scheduled debtor under Section 4 of the Act is not lost or defeated simply because the scheduled debtor fails to apply for the liquidation of the debt in the court during trial of the suit. Clauses (a), (b) and (c) of Section (4) lend full support to the view that the defence for liquidation of debt under Section 4 of the Act can be raised by the/scheduled debtor at any time when the proceedings for the recovery of the debt are initiated against him. The view taken by the learned Additional District Judge that the aplication of the judgment-debtor under Section 4 of the Act was not maintainable because he failed to file it during the pendency of trial of the suit, is not correct. The learned Judge did not take into consideration the provisions of clauses (a), (b) and (c) of Section 4 of the Act while passing the impugned order.

9. The learned Judge passed the impugned order in hot-haste. He did not issue even a notice of the application of the judgment-debtor to the decree-holder. Haste exhibited by him cannot be appreciated.

10. It is yet to be seen whether the judgment-debtor is a scheduled debtor'. The certificate issued to a scheduled debtor under Section 5 of the Act casts a duty on the civil court to presume that the debtor is a scheduled debtor. But this presumption is not conclusive it is rebuttable. Section 6 of the Act speaks that in case a certificate under Section 5 is issued, the burden of proving that the debtor is not a scheduled bebtor shall be on the creditor. It is therefore, yet to be seen whether the judgment-debtor is a scheduled debtor The decree-holder was not called-upon to meet the judgment-debtor's case of his being a scheduled debtor. It is also to be seen whether the decretal debt is a 'debt' as defined in the Act and the provisions of the Act are applicable to it. In fact, all the matters are still open because the judgment-debtor's application was dismissed in a slip-shod manner without deciding the essential questions arising under the Act. The only proper course, therefore, would be to set-aside the impugned order and send back the case to the court below.

11. In the result, the revision-petition is allowed and the impugned order of the learned Additional District Judge, Rajsamand dated October 20, 1984 is set-aside. The case is sent back to him with a direction that the application filed by the judgment-debtor under Section 4 of the Act should be disposed of in the light of the observations made above. The parties shall bear their own costs of this Court.


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